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Home My WebLink About050508 Agmt with Post Modern, LLC Multimodal Media Campaign to Promote CityREQUEST FOR AGENCY ACTION AGENCY BOARD MEETING DATE: MAY 5, 2008 TITLE: AGREEMENT WITH POST MODERN CREATIVE, LLC FOR MULTIMODAL MEDIA CAMPAIGN TO PROMOTE THE CITY OF SANTA ANA � ,. 4) EXECUTIyf DIRECTOR RECOMMENDED ACTION AGENCY SECRETARY USE ONLY: motion" l ai'et ,Mc.9 ; t7 al-h n e & ...06 o CONTINUED TO FILE NUMBER Authorize the Executive Director and Agency Secretary to execute the attached agreement with Post Modern Creative, LLC in an amount not to exceed $40,000 for the development of a Multimodal Media campaign to promote the City of Santa Ana for a one -year term, subject to non - substantive changes approved by the Executive Director and Agency General Counsel. DISCUSSION In June 2006, the Community Redevelopment Agency entered into an agreement with Post Modern Creative, LLC for the production of a citywide marketing DVD. This DVD has been used to highlight several of the City's assets and business opportunities to potential new businesses, brokers, and investors. The DVD has been a key business attraction tool used throughout the community at neighborhood meetings, various association gatherings, Chamber of Commerce events, and industry tradeshows. A component of the agreement was for the contractor to film additional footage that could be used in future projects. In an effort to continue to enhance and showcase the City to potential new businesses, developers, and investors, the Community Redevelopment Agency would like to produce another media campaign utilizing the additional footage combined with testimonials of various businesses and residents that have utilized the City of Santa Ana's business services. These testimonials will further highlight the benefits of conducting business in Santa Ana. 3 -1 As Recommended ' As Amended ❑ Ordinance on 1" Reading ❑ Ordinance on V' Reading ❑ Implementing Resolution ❑ Set Public Hearing For CONTINUED TO FILE NUMBER Authorize the Executive Director and Agency Secretary to execute the attached agreement with Post Modern Creative, LLC in an amount not to exceed $40,000 for the development of a Multimodal Media campaign to promote the City of Santa Ana for a one -year term, subject to non - substantive changes approved by the Executive Director and Agency General Counsel. DISCUSSION In June 2006, the Community Redevelopment Agency entered into an agreement with Post Modern Creative, LLC for the production of a citywide marketing DVD. This DVD has been used to highlight several of the City's assets and business opportunities to potential new businesses, brokers, and investors. The DVD has been a key business attraction tool used throughout the community at neighborhood meetings, various association gatherings, Chamber of Commerce events, and industry tradeshows. A component of the agreement was for the contractor to film additional footage that could be used in future projects. In an effort to continue to enhance and showcase the City to potential new businesses, developers, and investors, the Community Redevelopment Agency would like to produce another media campaign utilizing the additional footage combined with testimonials of various businesses and residents that have utilized the City of Santa Ana's business services. These testimonials will further highlight the benefits of conducting business in Santa Ana. 3 -1 Agreement with May 5, 2008 Page 2 FISCAL IMPACT Post Modern Creative, LLC Funds are available in the Merged Economic Development Account (account no. 570- 932 - 6291). APPROVED AS TO FUNDS AND ACCOUNTS: L n fa Summers ancisco Gutierrez Economic Development Manager Executive Director Community Development Agency Finance & Management Services Agency SGH /LS /mlr 050508 Agree PcstModernCreative 3 -2 CONSULTANT AGREEMENT THIS AGREEMENT, made and entered into this 5th day of May, 2008 by and between Post Modern Creative, a California limited liability company (hereinafter "Consultant "), and the Community Redevelopment Agency of the City of Santa Ana, a public body, corporate and politic (hereinafter "Agency "). RECITALS A. The Agency desires to retain a consultant having special skill and lrnowledge in the field of advertising to create and produce a video highlighting the City of Santa Ana. B. Consultant represents that Consultant is able and willing to provide such services to the Agency. C. In undertaking the performance of this Agreement, Consultant represents that it is knowledgeable in its field and that any services performed by Consultant under this Agreement will be performed in compliance with such standards as may reasonably be expected from a professional consulting firm in the field. NOW THEREFORE, in consideration of the mutual and respective promises, and subject to the terms and conditions hereinafter set forth, the parties agree as follows: 1. SCOPE OF SERVICES Consultant shall produce a video (3 -5 minutes in length) highlighting the advantages of living and working in Santa Ana ( "the Project "). Consultant will be responsible for and provide all pre - production, production and post - production services (including without limitation, creative sessions, location production, non - linear editorial, graphics, narration and music) necessary to create the Project. Consultant will deliver the video in Digital Beta or Beta SP format and four DVD's of the final product. 2. WARRANTIES - OWNERSHIP Consultant warrants and represents that it has the absolute right to enter into and perform this letter agreement and will perform its obligations hereunder in accordance with standards and practices prevailing in the industry. Consultant's contribution to the Project, including works to be produced by Consultant hereunder, will not infringe or misappropriate the proprietary or personal rights of any third person or party. Consultant's performance hereunder, including all suggestions, ideas or other contributions to the Project, and the resulting works, including without limitation videotape masters and all copies thereof, that result from the Project, shall be deemed "works made for hire" as defined in the United States Copyright Act, and Agency will be deemed, as to the creation of such work, the sole and exclusive author thereof. To the extent that any portion of the works from the Project is determined not to be a "work made for hire ", then Consultant hereby assigns and transfers to Agency all worldwide right, title and interest in 3-73 and to such work and shall execute any and all documents reasonably necessary to effect or evidence such assignment and transfer. 3. COMPENSATION a. Agency agrees to pay, and Consultant agrees to accept as total payment for its services, the rates and charges identified in Exhibit A. The total sum to be expended under this Agreement shall not exceed $40,000.00 during the term of this Agreement. b. Payment by Agency shall be made within thirty (30) days following receipt of proper invoice evidencing work performed, subject to Agency accounting procedures. Payment need not be made for work which fails to meet the standards of performance set forth in the Recitals which may reasonably be expected by Agency. 4. TERM This Agreement shall commence on the date first written above and terminate on ,Tune 30, 2009, unless terminated earlier in accordance with Section 13, below. The term of this Agreement may be extended upon a writing executed by the Executive Director of the Agency and the Agency General Counsel. 5. INDEPENDENT CONTRACTOR Consultant shall, during the entire term of this Agreement, be construed to be an independent contractor and not an employee of the Agency. This Agreement is not intended nor shall it be construed to create an employer - employee relationship, a joint venture relationship, or to allow the Agency to exercise discretion or control over the professional manner in which Consultant performs the services which are the subject matter of this Agreement; however, the services to be provided by Consultant shall be provided in a manner consistent with all applicable standards and regulations governing such services. Consultant shall pay all salaries and wages, employer's social security taxes, unemployment insurance and similar taxes relating to employees and shall be responsible for all applicable withholding taxes. 6. INSURANCE Prior to undertaking performance of work under this Agreement, Consultant shall maintain and shall require its subcontractors, if any, to obtain and maintain insurance as described below: 3-4 a. Commercial General Liability Insurance. Consultant shall maintain commercial general liability insurance naming the Agency, its officers, employees, agents, volunteers and representatives as additional insured(s) and shall include, but not be limited to protection against claims arising from bodily and personal injury, including death resulting therefrom and damage to property, resulting from any act or occurrence arising out of Consultant's operations in the performance of this Agreement, including, without limitation, acts involving vehicles. The amounts of insurance shall be not less than the following: single limit coverage applying to bodily and personal injury, including death resulting therefrom, and property damage, in the total amount of $1,000,000 per occurrence. Consultant shall supply Agency with a fully executed additional insured endorsement in substantially the form attached hereto as Exhibit B upon execution of this Agreement and shall be approved in form by the Agency General Counsel. b. Business automobile liability insurance, or equivalent form, with a combined single limit of not less than $1,000,000 per occurrence. Such insurance shall include coverage for owned, hired and non -owned automobiles. c. Worker's Compensation Insurance. In accordance with the provisions of Section 3300 of the Labor Code, Consultant, if Consultant has any employees, is required to be insured against liability for worker's compensation or to undertake self - insurance. Prior to commencing the performance of the work under this Agreement, Consultant agrees to obtain and maintain any employer's liability insurance with limits not less than $1,000,000 per accident. d. The following requirements apply to the insurance to be provided by Consultant pursuant to this section: (i) Consultant shall maintain all insurance required above in full force and effect for the entire period covered by this Agreement. (ii) Certificates of insurance shall be furnished to the Agency upon execution of this Agreement and shall be approved in form by the Agency Counsel. (iii) Certificates and policies shall state that the policies shall not be canceled or reduced in coverage or changed in any other material aspect without thirty (30) days prior written notice to the Agency. e. If Consultant fails or refuses to produce or maintain the insurance required by this section or fails or refuses to furnish the Agency with required proof that insurance has been procured and is in force and paid for, the Agency shall have the right, at the Agency's election, to forthwith terminate this Agreement. Such termination shall not effect Consultant's right to be paid for its time and materials expended prior to notification of termination. Consultant waives the right to receive compensation and agrees to indemnify the Agency for any work performed prior to approval of insurance by the Agency. 7. INDEMNIFICATION Consultant agrees to and shall indemnify and hold harmless the Agency, its officers, agents, employees, consultants, special counsel, and representatives from liability for personal injury, damages, just compensation, restitution, judicial or equitable relief arising out of claims for personal injury, including health, and claims for property damage, which may arise from the 375 direct or indirect operations of the Consultant or its contractors, subcontractors, agents, employees, or other persons acting on their behalf which relates to the services described in section 1 of this Agreement. 8. CONFIDENTIALITY If Consultant receives from the Agency information which due to the nature of such information is reasonably understood to be confidential and /or proprietary, Consultant agrees that it shall not use or disclose such information except in the performance of this Agreement, and further agrees to exercise the same degree of care it uses to protect its own information of like importance, but in no event less than reasonable care. "Confidential Information" shall include all nonpublic information. Confidential information includes not only written information, but also information transferred orally, visually, electronically, or by other means. Confidential information disclosed to either party by any subsidiary and /or agent of the other party is covered by this Agreement. The foregoing obligations of non -use and nondisclosure shall not apply to any information that (a) has been disclosed in publicly available sources; (b) is, through no fault of the Consultant disclosed in a publicly available source; (c) is in rightful possession of the Consultant without an obligation of confidentiality; (d) is required to be disclosed by operation of law; or (e) is independently developed by the Consultant without reference to information disclosed by the Agency. 9. CONFLICT OF INTEREST CLAUSE Consultant covenants that it presently has no interests and shall not have interests, direct or indirect, which would conflict in any manner with performance of services specified under this Agreement. 10. NOTICE Any notice, tender, demand, delivery, or other communication pursuant to this Agreement shall be in writing and shall be deemed to be properly given if delivered in person or mailed by first class or certified mail, postage prepaid, or sent by telefacsimile or other telegraphic communication in the manner provided in this Section, to the following persons: To Agency: Secretary — Community Redevelopment Agency City of Santa Ana 20 Civic Center Plaza (M -30) P.O. Box 1988 Santa Ana, CA 92702 -1988 Fax (714) 647 -6956 With courtesy copies to: Executive Director of Community Redevelopment Agency City of Santa Ana 20 Civic Center Plaza (M -25) P.O. Box 1988 Santa Ana, California 92702 3-46 and Fax(714)647 -6736 Agency General Counsel City of Santa Ana 20 Civic Center Plaza (M -29) P.O. Box 1988 Santa Ana, California 92702 Fax(714)647 -6515 To Consultant: Post Modern Creative 2941 Alton Parkway Irvine, California 92606 Fax(949)608 -8729 Attn: Rich O'Neill A party may change its address by giving notice in writing to the other party. Thereafter, any communication shall be addressed and transmitted to the new address. If sent by mail, communication shall be effective or deemed to have been given three (3) days after it has been deposited in the United States mail, duly registered or certified, with postage prepaid, and addressed as set forth above. If sent by telefacsimile, communication shall be effective or deemed to have been given twenty -four (24) hours after the time set forth on the transmission report issued by the transmitting facsimile machine, addressed as set forth above. For purposes of calculating these time frames, weekends, federal, state, County or Agency holidays shall be excluded. 11. EXCLUSIVITY AND AMENDMENT This Agreement represents the complete and exclusive statement between the Agency and Consultant, and supersedes any and all other agreements, oral or written, between the parties. In the event of a conflict between the terms of this Agreement and any attachments hereto, the terms of this Agreement shall prevail. This Agreement may not be modified except by written instrument signed by the Agency and by an authorized representative of Consultant. The parties agree that any terms or conditions of any purchase order or other instrument that are inconsistent with, or in addition to, the terms and conditions hereof, shall not bind or obligate Consultant nor the Agency. Each party to this Agreement acknowledges that no representations, inducements, promises or agreements, orally or otherwise, have been made by any party, or anyone acting on behalf of any party, which are not embodied herein. 12. ASSIGNMENT Inasmuch as this Agreement is intended to secure the specialized services of Consultant, Consultant may not assign, transfer, delegate, or subcontract any interest herein without the prior written consent of the Agency and any such assignment, transfer, delegation or subcontract without the Agency's prior written consent shall be considered null and void. Nothing in this Agreement shall be construed to limit the Agency's ability to have any of the services which are 3-57 the subject to this Agreement performed by Agency personnel or by other consultants retained by Agency. 13. TERMINATION This Agreement may be terminated by the Agency upon thirty (30) days written notice of termination. In such event, Consultant shall be entitled to receive and the Agency shall pay Consultant compensation for all services performed by Consultant prior to receipt of such notice of termination, subject to the following conditions: a. As a condition of such payment, the Executive Director may require Consultant to deliver to the Agency all work product completed as of such date, and in such case such work product shall be the property of the Agency unless prohibited by law, and Consultant consents to the Agency's use thereof for such purposes as the Agency deems appropriate. b. Payment need not be made for work which fails to meet the standard of performance specified in the Recitals of this Agreement. 14. DISCRIMINATION Consultant shall not discriminate because of race, color, creed, religion, sex, marital status, sexual orientation, age, national origin, ancestry, or disability, as defined and prohibited by applicable law, in the recruitment, selection, training, utilization, promotion, termination or other employment related activities. Consultant affirms that it is an equal opportunity employer and shall comply with all applicable federal, state and local laws and regulations. 15. JURISDICTION - VENUE This Agreement has been executed and delivered in the State of California and the validity, interpretation, performance, and enforcement of any of the clauses of this Agreement shall be determined and governed by the laws of the State of California. Both parties further agree that Orange County, California, shall be the venue for any action or proceeding that may be brought or arise out of, in connection with or by reason of this Agreement. 16. PROFESSIONAL LICENSES Consultant shall, throughout the term of this Agreement, maintain all necessary licenses, permits, approvals, waivers, and exemptions necessary for the provision of the services hereunder and required by the laws and regulations of the United States, the State of California, the City of Santa Ana and all other governmental agencies. Consultant shall notify the Agency immediately and in writing of its inability to obtain or maintain such permits, licenses, approvals, waivers, and exemptions. Said inability shall be cause for termination of this Agreement. 17. MISCELLANEOUS PROVISIONS 3-68 a. Each undersigned represents and warrants that its signature hereinbelow has the power, authority and right to bind their respective parties to each of the terms of this Agreement, and shall indemnify Agency fully, including reasonable costs and attorney's fees, for any injuries or damages to Agency in the event that such authority or power is not, in fact, held by the signatory or is withdrawn. b. All Exhibits referenced herein and attached hereto shall be incorporated as if fully set forth in the body of this Agreement. IN WITNESS WHEREOF, the parties hereto have executed this Agreement the date and year first above written. ATTEST: PATRICIA E. HEALY Secretary APPROVED AS TO FORM: JOSEPH W.FLETCHER Agency General Counsel By: Laura Sheedy Assistant Counsel 3-79 COMMUNITY REDEVELOPMENT AGENCY OF THE CITY OF SANTA ANA STEPHEN G. HARDING Executive Director POST MODERN CREATIVE RICH O'NEILL Producer Tax ID# EXHIBIT A FILM PRODUCTION COST SUMMARY Consultant will create and produce a 3 -5 minute 2008 Marketing Video titled "The Unexpected" for the Santa Ana Community Redevelopment Agency. Studio Shoot Days: 1 Hours: 10 Location Days: 1 Hours: 10 Location(s): Santa Ana Summary of estimated Production Costs Pre - production & Wrap Costs Shooting Labor Location & Travel Expenses Props, Wardrobe and Animals Studio & Set Construction Costs Equipment Costs Filmstock, Develop and Print Miscellaneous Estimated Totals A & C 2,300.00 Total B 11,800.00 Total D 240.00 Total E na Total F, G & H na Total I 2,950.00 Total J 150.00 Total K 150.00 Subtotal A to K 17.590 00 Director / Creative Fees (not included in Direct Costs) 1,000.00 Insurance 529.00 Subtotal Direct Costs 18,119.00 Production Fee 20% 3,623.80 Talent Costs & Expenses Total M & N 375.00 Editorial and Finishing Total O & P 8,210.00 TOTAL $31.327.80 3-810 LoM . _ ADDITIONAL INSURED ENDORSEMENT FOR COMMERCIAL GENERAL LIABILITY POLICY Insurance Company This endorsement modifies such insurance as is afforded by the provisions of Policy # relating to the following: 1. The Community Redevelopment Agency of the City of Santa Ana, 20 Civic Center Plaza, Santa Ana, California 92701; its officers, employees, agents, volunteers and representatives are named as additional insureds ( "additional insureds ") with regard to liability and defense of suits arising from the operations and uses performed by or on behalf of the named insured. 2. With respect to claims arising out of the operations and uses performed by or on behalf of the named insured, such insurance as is afforded by this policy is primary and is not additional to or contributing with any other insurance carried by or for the benefit of the additional insureds. 3. This insurance applies separately to each insured against whom claim is made or suit is brought except with respect to the company's limits of liability. The inclusion of any person or organization as an insured shall not affect any right which such person or organization would have as a claimant if not so included. 4. With respect to the additional insureds, this insurance shall not be cancelled, or materially reduced in coverage or limits except after thirty (30) days written notice has been given to the Community Redevelopment Agency of the City of Santa Ana, 20 Civic Center Plaza, Santa Ana, California 92701. (Completion of the following, including countersignature, is required to make this endorsement effective.) Effective Policy # Issued to this endorsement form as a part of Named Insured Countersigned by Authorized Representative 3-911 THIS PAGE LEFT INTENTIONALLY BLANK 3 -12